Menzies v. Beresford

(From Morison) The estate of Culdares was limited by a deed of entail executed in the year 1697, which contained the usual prohibitory, irritant, and resolutive clauses. The devise was, to James Menzies and his heirs-male; whom failing, to John Stewart of Cardneys and his heirs-male; whom failing, to George Stewart, the brother of the former, and his heirs-male; and these all failing, to the entailer's heirs-male. After this followed a destination in favour of the entailer’s heirs whatsoever, and their assignees. James Menzies, and the late Commissioner Menzies, his only son, who had no male-issue, agreed to execute a supplementary entail; whereby, in addition to the substitutes specified in the former deed, their own heirs, including, in the firstplace, the Commissioner’s daughter, were called to the succession, before the heirs whatsoever of the original entailer. After the death of Commissioner Menzies, who survived his father, John Stewart of Cardneys, now Menzies of Culdares, made up his titles by a service, under the original entail. He afterwards (in 1777) brought an action against Elizabeth Mackenzie Menzies (later Elizabeth Mackenzie Beresford), the daughter of Commissioner Menzies, for setting aside the additional settlement, which had been completed by charter and investment. In this manner the general question occurred, How far a person possessing an estate under a strict entail, himself not being the last substitute, could make a suppletory entail, to take effect when the subsisting one should come to an end. The case proceeded to the House of Lords, who remitted the case back to the Court of Sessions in 1801.